Law students and law graduates in Pakistan are reporting for JURIST on events in that country impacting its legal system. Hussain Abbas is an LLB student in the University of London External Programme. He files this from Islamabad.
Since the first promulgation of Pakistan’s constitution back in 1971 the country still wanders, bewildered by the promise of the rule of law that accompanied it. Whether one considers its citizens or the executive charged with its governance, both are enamoured with the idea of a written constitution without paying any respect to its significance or promised purpose for the evolution of the State it serves.
Pakistan’s current political crisis has engulfed the nation for more than a decade. On the morning of May 9th, 2023, former Prime Minister Imran Khan succumbed to one of many lawsuits filed against him and was arrested on the premises of the district courts in Islamabad. This was done despite Khan’s threats of mobilizing his supporters against the State. True to his word, what unfolded that fateful morning was lawlessness at the hands of the biggest political party in Pakistan. A loss of approximately 3.5 billion rupees to the exchequer later, Pakistan stood still in the face of the hate directed at its integrity by its own citizens.
The unprecedented violent protests against Khan’s arrest initially showcased his sheer street power, clearly indicating that his party, the PTI (Pakistan Tehreek-e-Insaf), posed a massive political threat. The protests also signified a major shift in how the public viewed the establishment. For a moment it seemed as if Khan had the upper hand, until the military retaliated.
The response of the State was expectedly swift. Khan, who was once a protégé of the establishment, had become a victim of his own agenda. The military, which had faced the brunt of the onslaught and having incurred heavy financial losses, was swift in its retort, exhibiting a glimpse of the strength it showed in 2018 when Khan was first elected with its support. Criminal procedure was used as a tool for rounding up all dissidents with little regard for the intensity of their individual crimes. The use of laws such as the Maintenance of Public Order Ordinance 1960, which was promulgated during the military dictatorship of General Ayub Khan, only further muddled the credibility of the State in its handling of the affair. Something that could have proved to be so profound for the nation soon started to stink of something political due to the use of the ever-controversial military courts. Reports indicate that 102 individuals have been charged so far and are awaiting trials by a military court for offenses including criminal intimidation, rioting and assault on government officials.
In response, multiple actors from civil society filed references in the Supreme Court against the impending use of military courts for the trial of civilians.
Among the petitioners is a former Chair of the bench, Justice Jawwad S. Khawaja. The former CJP’s (Chief Justice of Pakistan) petition is numbered as 24/2023 while the petition of Aitzaz Ahsan, a stalwart of the Pakistan People’s Party (PPP) – a coalition partner in the current government – is numbered as 25/2023. In decades past, Ahsan has represented PPP both in the Senate and their cabinet, all the while maintaining his reputation as a lawyer and a friendly neighbor of the chairman of PTI.
The third petition by members of civil society was allotted the number 26/2023. Another constitutional petition was also put forward by Col. (Retd) Inam Raheem, against the military court trials of approximately 27 citizens of the state that took place under the PTI government who at present remain locked away at the behest of their military court sentencing; their ordeal to this date has somehow eluded the CJP’s discretion.
The law in its present form under the Pakistan Army Act 1952 and the Official Secrets Act, 1923 allows for Pakistan civilians to be tried in Pakistan military courts, but confines this to narrowly defined circumstances that exhibit the incitation of mutiny, spying or even taking photographs of prohibited places. However, such draconian laws are not viable when it comes to upholding the constitutional rights of citizens. This fact of course has not gone unnoticed.
Patricia Grossman, the Associate Asia Director at Human Rights Watch, has pleaded for restraint and has advocated for a trial by an independent and impartial civilian court. She argues that a trial in a civilian court is not only an appropriately weighted response to the violence, but will also strengthen the rule of law. Such pressure is only compounded by the international obligations that bind the state of Pakistan to act as a responsible member of the global community under international human rights law, and more specifically Article 14 of the International Covenant on Civil and Political Rights which Pakistan ratified in 2010. This Article guarantees the right to a fair trial by a competent, independent and impartial tribunal, but with the Human Right Committee having already weighed in with suspicion of transgressions at the hands of the state, the situation for the executive is precarious to say the least.
Although Pakistan could aspire to employ the slightly flexible stance of international humanitarian law on military tribunals, it would still find that a hard fix as the two triggering situations of international armed conflict or non-international armed conflict are truly distinct from the circumstances at hand. Any bravado to market them as war crimes would be discouraged by any ounce of sensibility.
In response to the 21st Amendment to Pakistan’s Constitution, the Supreme Court of Pakistan in 2015 faced a similar inquisition in law, albeit different in circumstance. To the dismay of constitutionalists, they upheld the establishment of military courts to try civilians, a move which was termed by the International Commission of Jurists as a “glaring surrender of human rights and fundamental freedoms”. The Court, within its judgment, concluded that this was not a violation of fair trial or judicial independence, and that compliance with international law was a matter for the government and not the court. The Chief Justice of Pakistan, heading the six-member bench hearing the current petitions, has on occasion passed the odd remark which has shown his sympathy to civilians’ plight in facing the harshness of a military trial.
On behalf of the Government, however, the Attorney General of Pakistan Mr. Mansoor Awan has emphasized the severity of the crime and how the attacks on military installations were neither localized nor isolated and that the facts on the ground provide enough evidence that the dissidents had acted to give effect to their strategic plans. He also gave the court assurances that no individual that faces a military trial was charged with an offense containing capital punishment.
The latest adjournment of the issue, however, is likely to be lengthy, and probably will be prolonged enough for it to be decided after the assumption of the office of the Chief Justice of Pakistan by Justice Qazi Faez Isa. as the incumbent judge is set to retire on 16th September, 2023. The sitting CJP, Justice Umar Ata Bandial, was one of the majority that had dispensed justice in 2015, but in the words of the honorable judge himself pertaining to his change in stance on another matter, judges are free to adopt the “correct” view after conscious application of mind. This would seem to be the case in the current situation.
With justice suspended and politics of impunity apparently in charge, the nation yearns for its executive to not transgress the law but rather serve it. Pakistan screams for balance and it is for its constitutional institutions to provide it with the same. This requires vacating necessity and replacing it with equity and justice.
